If a tree falls in the forest, and no one is around to hear it, does it make a sound? By the same token, if a valuable Pokémon is digitally placed on your lawn, is the company whose algorithm spawned that Pokémon guilty of trespassing if a nearby gamer enters your property to catch it? A recent development in a class-action lawsuit against Niantic, the company who developed Pokémon Go, suggests that “AR-induced trespass” may need to be a concern for augmented reality developers in the future.
But first, some background. In July of 2016, plaintiffs from several states sued, claiming that strangers have repeatedly been trespassing on their property. According to the complaint, these strangers have been showing up on or near the plaintiffs’ property to either catch Pokémon or use Pokémon gyms that are located there. Since being filed in 2016, the plaintiffs’ lawsuit has gone through several phases. Initially, Niantic succeeded in obtaining a dismissal on procedural grounds, but after the plaintiffs refiled, the company found itself back in court. Most recently, in March 2018, Judge James Donato of the U.S. District Court in the Northern District of California denied an attempt by Niantic’s attorneys to dismiss the case a second time. Judge Donato indicated that, because laws around digital trespass are unclear and this case presents a “novel issue” the suit should proceed. On either side of this legal tug-of-war, there are contentious arguments as to whether “AR-induced trespass” should be recognized and enforced.